Enforcing an Unenforceable Ruling in the South China Sea

There is no world police to compel powerful nations to comply with international justice. But there is a private sector.

By Brian McGarry for The Diplomat

July 16, 2016

The most frequently asked question since Tuesday’s ruling on China’s maritime claims has been a familiar chorus to public international lawyers: what good is a ruling without enforcement?

“Nothing more than a piece of paper” is how senior Chinese diplomats pre-emptively described this ruling by a tribunal of senior judges, whom I was privileged to clerk for during an earlier phase of the case. The tribunal found China’s nine-dash line encircling the South China Sea—and island-building activities therein—to be legally meaningless. But these decisions are not “enforceable” in the conventional sense.

Since the Philippines initiated this case in 2013, China has repeated the mantra that its “non-acceptance of and non-participation in the arbitration are solidly founded in international law.” It employs state-run media to sow doubts concerning the ruling’s legitimacy, making its case for non-compliance.

Such doubts reflect three fundamental misconceptions. The first concerns the Philippines’ initiation of the arbitration. China’s repeated description of this act as “unilateral” implies that it had not consented to arbitration as a means of settling regional disputes. Yet Beijing had freely ratified the UN Convention on the Law of the Sea (UNCLOS), a treaty that expressly empowers any nation to initiate claims on a range of issues.

The second misconception is also semantic. By reiterating that it does not “accept” the arbitration, China suggests that the tribunal’s pronouncements are advisory. Yet the arbitration was initiated under a section of UNCLOS entitled “Compulsory Procedures Entailing Binding Decisions.” Although the tribunal cannot directly enforce the ruling, it remains the authoritative statement on China’s legal responsibility in this dispute.

The final misconception is China’s assertion that it can legally ignore this ruling because the tribunal misinterpreted UNCLOS when it affirmed its jurisdiction. This premise turns a defendant into his own judge, and diminishes the value of negotiating treaties with strong dispute settlement provisions. That is the rationale underlying the principle—found in customary practice and explicitly in UNCLOS—that such decision making authority rests with the tribunal alone.

Publicly clarifying these three points reinforces the ruling’s legitimacy, and provides an ideal environment for the parties to negotiate its implementation. While China has acknowledged the potential for “win-win” joint development of maritime resources, it also flatly rejected the tribunal’s decision. Its government has invested heavily in a now-rejected position of exclusive sovereign rights to resources in and beneath the South China Sea.

Yet the seafloor may also be the best venue for enforcing this ruling.

By nullifying China’s nine-dash line and pouring cold water on regional sovereignty claims, the tribunal opened the door to drilling activities. There is now no legal ambiguity impeding Manila from licensing blocks of its continental shelf to oil and gas contractors. Similarly, a “donut hole” in the middle of the South China Sea (i.e., beyond the continental shelves of all surrounding countries) is legally open to exploration activities by any nation. A comparable analysis applies to fishing rights in these respective zones.

There will always be commercial operators who are willing to take grave risks for a profit. Some may consider that, despite China’s opposition to foreign claims and interventions, it would not invite the consequences of employing military force against the private citizens of a third-party nation who are conducting business in accordance with a unanimous 479-page ruling.

To answer the question of enforcing international justice, we should thus reconsider enforcement from a bottom-up perspective. This is in keeping with trends toward the empowerment of the individual in international law over recent generations: the recognition of human rights, the legal facilitation of private investment in foreign nations, the role of civil society in international policymaking. It also accords with a central objective of public international law: to circumvent direct military conflict between nations.

Ultimately, the time required to achieve compliance is a reflection of the creative faculties of potential stakeholders in the South China Sea, rather than an indication of the arbitration’s legitimacy. International law is maddeningly patient, and this long-awaited ruling will be no less binding with age.

Brian McGarry is appointed lecturer at The Graduate Institute of International and Development Studies in Geneva, and formerly assistant legal counsel at the Permanent Court of Arbitration in The Hague. The views expressed in this paper are those of the author alone.